A disciplinary that feeds into a barring decision does not always give you the right to a lawyer at the internal hearing.
“A serious possible outcome, like being barred from your profession, does not by itself give you a right to legal representation at an internal disciplinary; what counts is whether that hearing effectively decides the later barring question.”
A serious possible outcome, like being barred from your profession, does not by itself give you a right to legal representation at an internal disciplinary; what counts is whether that hearing effectively decides the later barring question.
- Ask early what a dismissal in your case would trigger, and who makes the final barring or registration decision.
- Check your employer's policy for any representation right rather than assuming Article 6 supplies one.
- Get specialist or union advice on where your arguments will carry the most weight.
The situation
A teaching assistant at a school faced internal disciplinary proceedings over an allegation of an inappropriate relationship with a young person. The school said he could be accompanied by a trade union representative or a colleague, though not by a lawyer. Because the allegation involved sexual misconduct, a dismissal would have to be reported to the body that maintained the children's barred list, which could then decide to bar him from working with children. He argued that the seriousness of what might follow meant Article 6, the right to a fair hearing, required legal representation at the school's own hearing.
What the court found
The Supreme Court, splitting four to one, decided that Article 6 simply did not bite on the school's own disciplinary hearingA formal meeting at which your employer sets out the allegation against you and gives you the opportunity to respond before any decision is made. You have the right to be accompanied by a colleague or.... The reasoning was that where a person faces two separate processes, Article 6 is engaged at the first only if that first process has a substantial influence over the civil rights decided in the second. Here the barring body would make its own independent assessment of the allegations and was not bound by the school's findings, so the internal hearing did not itself determine his right to practise his profession. On that basis the school was not required to allow legal representation, and the appeal by the governors was allowed. One judge dissented.
R (on the application of G) v Governors of X School | [2011] UKSC 30; [2011] IRLR 434 | Supreme Court | 29 June 2011